Bennett v. Mattingly

• Decision Date: 15 February 1887
• Citation: 10 N.E. 299,110 Ind. 197
• Parties: Bennett and others v. Mattingly.
• Court: Indiana Supreme Court

110 Ind. 197

10 N.E. 299

Bennett and others

v.Mattingly.¹

Supreme Court of Indiana.

February 15, 1887.

Appeal from circuit court, Marshall county.A. C. Capron, for appellants. C. B. Tibbetts, for appellee.

NIBLACK, J.

On the twenty-eighth day of October, 1881, Scott Dingman and Matilda H. Dingman, his wife, were the owners by entireties of lot No. 5, in what is known as “East Plymouth,” in the city of Plymouth, in this state. On that day they jointly executed to Charles T. Mattingly, the appellee in this appeal, two promissory notes for $300 each, payable in one and two years, respectively, with 8 per cent. interest from date, to secure the payment of what purported to be a loan to them of the sum of $600; and on the same day, to further secure the payment of said sums of money, they, the said Scott Dingman and wife, conveyed to the said Charles T. Mattingly as and in the form of a mortgage the lot above described. This mortgage was recorded within the time limited by the statute. On the thirtieth day of January, 1885, the said Scott Dingman and wife, upon what was claimed to be a full consideration paid to them, sold, and by warranty deed conveyed, the lot so mortgaged to Joseph H. Bennett and Joseph Collins, the appellants herein.

On the fourteenth day of February, 1885, Mattingly commenced this suit against Bennett and Collins to foreclose the mortgage executed to him as above stated. In his complaint Mattingly requested only a finding of the amount due upon the notes, and a decree of the sale of the mortgaged property to pay the amount so found to be due. Bennett and Collins demurred to the complaint- First, for want of sufficient facts; secondly, for defect of parties in failing to make Dingman and wife parties defendant. But their demurrer was overruled. They then filed a petition alleging, among other things, that Dingman and wife had an interest in the subject-matter of the action by reason of having conveyed to them, the said Bennett and Collins, the mortgaged land by warranty deed; that the notes and mortgage sued on were void as to Mrs. Dingman, and that hence she had a good defense to the action; that, the mortgage being void as to Mrs Dingman, it was, under the circumstances, void as to Dingman; and that in consequence he, in like manner, had a good defense; and praying that Dingman and wife might be made co-parties defendant. The circuit court nevertheless overruled the prayer of the petition, and exceptions were reserved. Bennett and Collins then answered in two paragraphs- First, in denial; second, that Mrs. Dingman was, at the time of the execution of the notes and mortgage, and still was, the wife of the said Scott Dingman, which Mattingly well knew; that the said Scott Dingman caused the notes and mortgage to be executed to secure the payment of money borrowed by him, and for no other consideration; that Mrs. Dingman executed the notes and mortgage only as surety for the said Scott Dingman, then so being her husband, which Mattingly also well knew. A demurrer was sustained to this second paragraph of the answer, and the circuit court made a finding of the amount due upon the notes, and decreed a foreclosure of the mortgage and a sale of the mortgaged property.

An argument is submitted against the sufficiency of the complaint upon demurrer, upon the ground that it showed Mrs. Dingman to have been a married woman at the time she executed the notes...